Ltd. 57929-12-24 Anonymous vs. Anonymous - part 3

We, the undersigned, after being warned that we must declare the truth, that otherwise we will be liable to the penalties prescribed by law, hereby declare as follows:

1. We declare that we are not married to each other or to any other spouse.
2. We declare that out of mutual consent and free choice and without any financial consideration from any party, we have approached the IVF Unit at Soroka University Medical Center in order to perform IVF from the man's sperm and the woman's eggs.
3. We declare that the embryos that will be created from the aforementioned fertilization are intended for the woman's uterus and not for the purpose of insertion into another "surrogate mother".
4. We declare that we are aware that after the success of fertilization and the insertion of the embryos that will be created into the woman's uterus, it will not be possible to cancel this agreement and/or withdraw from it unilaterally by one of us, with all the mutual and legal obligations deriving from it.
5. We hereby declare that we know and understand that upon the birth of the baby from this fertilization, all the duties and duties and rights deriving from natural biological parenthood will apply to us, even if we are not married to each other at the time of birth.
6. The man declares that he knows and understands that even if the babies born from this fertilization are held by the woman alone, he will be subject to all the duties and rights of a biological father according to any law, and nothing in this special agreement detracts from this.
7. We declare that in the event of the disappearance and/or death of one of us, even before the absorption of the embryos created by fertilization in the woman's womb, the remaining party will be entitled to choose the method of treatment with the genetic material provided by the parties for the purpose of fertilization, after presenting a legal certificate regarding the disappearance and/or death of the other party and subject to the provisions of any law applicable to the subject in the State of Israel" (errors in the original, The corrections in square brackets were added - 4:2:1).

Subsequently, on November 17, 2015, the Applicant and the Respondent signed the affidavit in the presence of an attorney.

8. On November 23, 2015, a procedure of egg retrieval was carried out from the Applicant's body, at the same time as the Respondent's sperm was delivered for the purpose of fertilization. As noted, upon completion of the extraction, it became clear that only three normal eggs had been extracted from her body.  Due to the scarcity of eggs and in accordance with the latest medical recommendation presented to them, the couple decided to fertilize the three eggs with the respondent's sperm, i.e., to freeze the embryos created as a result of the fertilization of the genetic material of both of them, without leaving any unfertilized eggs.
9. It should be clarified that at that point in time the parties did not know for sure that these would be the last three eggs that could be extracted from the applicant's body. At the same time, they also did not know whether the additional pumping cycles that were planned would bear fruit.  In any case, they acted in accordance with the latest medical recommendation, which favored the fertilization of all the eggs.  It is also important to note that the respondent later testified that at that time - and in fact even a little earlier when he participated in the process by way of sperm production and delivery - his relationship with the applicant was undermined and he had doubts about the process.  However, he refrained from sharing them with the Applicant.
10. Therefore, in accordance with the decision made by the Applicant and the Respondent based on the current recommendation, the fertilization of the three eggs was carried out on November 23, 2015, and after 48 hours, on November 25, 2015, the embryos that developed from fertilization were frozen.  On the same day, the couple received a document from the Soroka Medical Center, stating that the embryos would be frozen for a period not exceeding five years, unless a written request was received by the Applicant and the Respondent to extend the freeze period.
11. Close to the date of the embryo freezing, it became clear that the Applicant's illness had returned with metastases in the uterus and liver. As a result, the oncologists ordered an immediate cessation of fertility preservation treatments, and in December 2015 the applicant began chemotherapy treatments.
12. After the applicant underwent six rounds of chemotherapy treatments, she underwent a series of tests in which abnormal findings were discovered in her body. Therefore, on May 3, 2016, the attending doctors recommended that she undergo surgery to remove a hysterectomy as well as to remove part of the liver that was infected with the tumor.  Subsequently, on July 20, 2016, the Applicant underwent surgery to remove the uterus.  At this stage, the chances of extracting additional eggs from the applicant were nil, and the possibility that she would carry an embryo in her womb was completely eliminated.
13. During the month of August 2016 and after extensive examinations, the Applicant was informed that she was "clean" of cancerous tumors. Shortly thereafter, the respondent informed the applicant that he was interested in ending the marital relationship between them, and the two separated.
14. A few days after the separation, the Applicant contacted the Respondent and asked him to sign a document of consent for the use of the frozen embryos. The respondent refused this request.  After about four more years, on October 11, 2020, the Applicant contacted the Respondent again and shared with him her desire to use the frozen embryos for the purpose of surrogacy through a surrogate mother.  The Applicant argued that this was the only option open to her to bring into the world a child with a genetic connection to her, and that she would leave the Respondent's discretion to choose whether to be in contact with the newborn.  The respondent, for his part, noted that the decision was expected to have significant implications for his life, and explained his objection in principle to having children whose upbringing he would not have a part in.  Finally, the respondent told the applicant that he would talk to his wife about the matter and update her.  A few days later, the Respondent sent the Applicant a short text message in which it was written: "Sorry."

The Normative Framework

15. In order to discuss the case before us, we must preface and present the normative "building blocks", i.e., the relevant laws and legal precedents that dealt with the issue.  As we shall see, despite the lengthy litigation in the Nachmani The issue remains open, at least partially.  The questions raised in this case are not answered in primary legislation, and the very partial regulation of the issue is limited to secondary legislation, procedures and case law only.
16. As already noted, the Nachmani which was discussed in the 1990s has special relevance in the circumstances of the case at hand.  Therefore, there is room to re-present his fundamental facts.  The same case revolved around the story of the Nachmani couple, Ruthie and Danny, who married in 1984.  After Ruthie lost the ability to carry a natural pregnancy following a hysterectomy surgery - but when her body still contained fertilizable eggs - the couple sought to have a child through IVF.  They waged a protracted struggle to achieve their goal, including in the courts, until finally the legal outline was found that would allow this, by means of in vitro fertilization, which would be completed in a surrogacy process abroad (since at that time the law did not yet recognize the possibility of surrogacy in Israel).  Subsequently, eggs were extracted from Ruthie and fertilized with Danny's sperm, after which the couple's embryos were frozen.  At the point when the two tried to locate a mother in the United States, Danny broke up with Ruthie, started a new family and became a father himself.  Ruthie, on the other hand, remained childless, and her "last glimmer of hope to be a mother" was through the use of frozen embryos through surrogacy procedures (as the judge put it).  Z.  A.  Tal In the matter Nachmani I).  However - and this is the important detail for our matter - Danny did not give his consent to this.
17. Ruthie filed a lawsuit with the Haifa District Court on the matter, which granted her request and allowed her to use the frozen embryos (Matter Nachmani District, the judge Khirbat Ariel). Danny's appeal to the Supreme Court was heard before five justices and was accepted by a majority of opinions ( Nachmani I, Vice President A.  Barak, the judges D.  Levin andY.  Zamir and the judge T.  Strasberg-Cohen, against the judge's dissenting opinion Anonymous).
18. Subsequently, Ruthie filed a request for an additional hearing, which was granted. The additional hearing was held before an expanded panel of 11 judges, and it was decided to accept Ruthie's petition (the justices) C.  Bach, A.  Goldberg, A.  Matza, Y.  Kedmi, D.  Dorner, Anonymous, andY.  Turkel, against the minority opinion of the President Lightning and the judges T.  Or, Nightingale andStrasberg-Cohen).  The reasoning of the justices - both the majority and minority judges - differed from one another in their reasons and the emphases they proposed, and there is no need to present the entire opinion at length.  The disputes exted, inter alia, to constitutional questions relating to the balance between conflicting rights, questions from the field of private law that focused on the contractual aspect, and even questions concerning the essence of the relationship between "law" and "justice." The justices were asked at length to examine the nature of the agreement that was created between Ruthie and Danny Nachmani, its scope and implications, as well as the possibility of retracting it at such a late stage of the process.
19. In any event, it seems that it is possible to conclude that according to the majority of the justices in the Nachmani, in the post-fertilization stage, the right to parenthood should be preferred over the right to non-parenthood, in circumstances where the frozen embryos are the "last chance" to bring a child into the world. As noted, the legal analysis has changed among the judges, but this is the common basis for all the majority justices.  At the same time, it must be admitted that the said balance of rights was not determined categorically or abstractly, but rather focused on the rights of the particular parties against the background of the unique facts of that case (see, for example: Name, at p.  704 (in the opinion of the judge Anonymous), at p.  719 (in the opinion of the judge Dorner), at p.  744 (in the opinion of the judge Bach), at pp.  759-760 (in the judge's opinion Find)).
20. The Rule Established in Parashat Nachmani It served as an important point of reference in a later judgment that revolved around the desire of a woman, who gave birth to a daughter after receiving an anonymous sperm donation, to use additional sperm donations of that donor, after the latter regretted and asked to stop using the donations he had given in future cases (High Court of Justice 4077/12 Anonymous v. Ministry of Health, IsrSC 66(1) 274 (2013) (hereinafter: the Sperm donation)).  In that case, it was determined that the woman should not be allowed to do so and that the donor's position should be accepted.  In the judgment, the judge stood A.  Rubinstein On the distinctions between that case and the Nachmani, explaining it as follows -

"The Nachmani case did not recognize a fundamental right to have children from a certain person.  She recognized that in the absence of any other possibility of bringing a child into the world and in exceptional circumstances (inter alia, after IVF has occurred), the right to parenthood may override the right of another not to be a parent and his right to autonomy.  This is not the situation in our case.  The Petitioner's right to parenthood and her ability to parent are not dependent on the sperm donor...  In these circumstances, the donor's right to autonomy prevails" (ibid., at p.  332 (emphasis in original).  See also: ibid., at p.  319).